The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, judges T. V. Voronovich, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L. M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

on the basis of part eight of Article 22 the Code of the Republic of Belarus on Judicial System and Status of Judges

in the exercise of the right to submit to the President of the Republic of Belarus, chambers of the National Assembly of the Republic of Belarus, Council of Ministers of the Republic of Belarus, other state bodies within their competence proposals on the need to make alterations and (or) addenda to acts of legislation

in court session considered the issue of legal regulation of relations as regards granting and payment of educational maintenance allowance to the citizens in the instances of their training, retraining, advanced training according to the grounds for termination of an employment agreement. The issue of specifying the instances in which the above persons may be refused unemployment benefits were also under consideration.

Having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Labour Code of the Republic of Belarus (hereinafter – the LC), the Law of the Republic of Belarus of June 15, 2006 “On Employment of the Population of the Republic of Belarus” (hereinafter – the Law on Employment of the Population) and other legislative acts of the Republic of Belarus the Constitutional Court found the following.

1. According to Articles 1 and 2 of the Constitution the Republic of Belarus is a state based on the rule of law, where the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State.

The responsibility towards the citizen was declared in the Constitution as a goal of the policy of the Republic of Belarus being a social state. The State shall bear responsibility towards the citizen to create the conditions for the free and dignified development of his identity, shall safeguard the right to a dignified standard of living, including appropriate food, clothing, housing and likewise a continuous improvement of necessary living conditions (part one of Article 1, part two of Article 2, part two of Article 21). The Constitution guarantees the right to work as the worthiest means of an individual's self-assertion, as well as creation of conditions necessary for full employment of the population (part one and two of Article 41).

Pursuing to the constitutional meaning of the mentioned articles in coherence with Article 59 of the Constitution, under which the State shall take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus, those individuals, who had been thrown temporarily unemployed and therefore without guaranteed income for reasons beyond their control (in particular, due to liquidation of an organisation, termination of activity of an individual entrepreneur, staff redundancy, termination of labour relations on some other grounds), should be ensured an efficient protection in order to support their required minimum standard of material wealth and to assist their employment.

In the Constitutional Court opinion the guarantees, which are to be provided by the legislator basing on and following the constitutional provisions on unemployment protection, inclusive of the right to new vocational training and advanced training in view of social needs, and to unemployment benefits should rely on the universal principles of equity and equality.

2. The unemployment protection is provided by development of the system of employment assistance and material support for individuals thrown unemployed and recognised as unemployed in the established procedure. Nowadays such a system is provided by the Law on Employment of the Population, where state guarantees of the citizens’ rights to work and social protection of the unemployed have been defined.

According to article 10 of the Law of Employment of the Population as regards employment assistance the state shall guarantee to the unemployed free vocational training, retraining and advanced one in view of social needs and individual aptitudes, abilities and skills as well as their psychophysical personalities. It also should guarantee unemployment benefits, educational maintenance allowance when directed for training by labour, employment and social security authorities (paragraphs 1-3 of part four).

In order to ensure the said guarantees it has been provided as a general rule in article 23 of the Law on Employment of the Population that individual educational maintenance allowance shall be granted at the rate of 50%, if either there are any children up to 14 years old or a disabled child up to 18 – 75% of average salary (income) at the last workplace, but not less than one and a half of minimum unemployment benefits for this unemployed and not above three-fold nominal unit (part two).

Meanwhile in part three of that article it has been established that the citizens who have terminated their termless employment agreement of their free will, as agreed by parties or whose employment agreement has been terminated on the grounds specified in points 4, 5, 7-9 of article 42, point 5 of article 44 and article 47 of the LC, as well as those recognised as the unemployed in the established procedure shall be granted educational maintenance allowance at the rate of a nominal unit. The Constitutional Court notes that while formulating such a rule the legislator had practically proceeded from termination of an employment agreement depending on the employee’s nature of action (his/her own will, agreement of parties or his/her faulty actions, which involve the dismissal as set forth in given points of articles 42, 44 and 47 of the LC).

Moreover in the Constitutional Court opinion the approaches applied by the legislator to select the grounds for termination of an employment agreement, which affect the rate of educational maintenance allowance of the citizens recognised as the unemployed in the established procedure, are not consistent and fair and after all these approaches do not ensure the guarantees for the rights of specific categories of citizens to social protection of the unemployed.

The Constitutional Court believes that there are no reasonable grounds to regard citizens who have terminated labour relations on their own free will in the circumstances which eliminate or impede working (health grounds, for instance) as those categories covered by article 23 of the Law on Employment of the Population. The grounds also lack in the instances when the employer violates labour legislation, collective contract or agreement, employment agreement (part four of article 40 of the LC), that is with valid reasons. Such reasons have been respected by the legislator in the instances of the dissolution of a fixed-term employment agreement (article 41 of the LC). In this context the dismissal according to the above article does not affect the rate of future educational maintenance allowance as article 41 of the LC is out of the list of the grounds for termination of an employment agreement, drawn up in article 23 of the Law on Employment of the Population.

The Constitutional Court also finds that a rule of part three of article 23 of the Law on Employment of the Population refers to article 47 of the LC in whole, thereby covering all the employees whose employment agreement have been terminated on any grounds specified in this article of the LC and therefore should be clarified. Moreover, in view of the addenda to article 47 of the LC by the Law of the Republic of Belarus of July 20, 2007 “On Making Alterations and Addenda to the Labour Code of Republic of Belarus” introduced as point 11 at present either the head of organisation or his/her deputies and chief accountant may be dismissed at the change of property ownership, that is practically in the absence of those employees’ fault.

3. The above assessment by the Constitutional Court of legislative provisions on the rate of educational maintenance allowance, granted and paid to the citizens, directed for vocational training, retraining and advanced training, depending on the grounds for termination of their employment agreement may be applied to the rules, stipulated in article 24 of the Law on Employment of the Population. As generally ruled therein unemployment benefits shall be granted by labour, employment and social security authorities, it shall be paid to a citizen since the registration as an unemployed therein. The rule also determines the payment pattern concerning specific categories of the unemployed as well as the procedure and conditions of benefits payment. At the same time unemployment benefits may be refused in the instances of termination of a termless employment agreement of one’s own free will, as agreed by parties or on the grounds specified in points 4, 5, 7-9 of article 42, point 5 of article 44 and article 47 of the LC as well as in the event of dismissal (expulsion) for military (classroom) misconduct or loss (lack) of sources of income through unlawful acts.

The Constitutional Court supposes that pursuing the social objective of unemployment benefits and the state guarantees aimed at the appropriate safeguard of the constitutional right to unemployment protection, those citizens who had labour relations on the basis of a termless employment agreement and terminated it of their own free will for valid reason (part four of article 40 of the LC), may not be refused unemployment benefits.

The foundation of the legislative provision on refused unemployment benefits to individuals who are not covered by point 11 of article 47 of the LC raises doubts for the dismissal of those individuals has not been determined by their faulty actions. Therefore they may not be regarded as the individuals covered by paragraph two of part two of article 24 of the Law on Employment of the Population, whose employment agreement has been terminated on the grounds involving the refuse of unemployment benefits.

4. The constitutional provision on everyone’s equality before the law (Article 22 of the Constitution) turns to be one of the fundamental bases of a state ruled by law, relations between the state and its citizen, characteristic of the personal constitutional status. This principle implies on the entirety of the legal system, so in view of the specific nature of legal regulation it is not only possible but necessary to stipulate specific implementation mechanisms in separate legislative branches.

The principle of everyone’s equality before the law is characteristic for legal status of the citizens in any fields of the public life inclusive of a social one. The Republic of Belarus being a social state attributes the primary importance to the constitutional requirement of equal guarantees for the exercise of social rights, stipulated either in the Constitution or laws. Therewith the Constitutional Court points out that in view of articles 22 and 23 of the Constitution the principle of everyone’s equality before the law does not except the differentiation of legal regulation to be constitutionally founded. Such differentiation aims to establish legal diversity, advantages and preferences to specific categories of citizens (minors, the disabled and so on) provided that applied legal remedies are reasonable and commeasurable to protected values and goals.

Now therefore the Constitutional Court considers that legal regulation on the establishment of grounds for termination of an employment agreement affecting the rate of educational maintenance allowance and the opportunity to be granted unemployment benefits should be clarified, for the individuals of the same category (who have been dismissed for the reasons irrelevant to their unlawful acts and were recognised as the unemployed) are not provided with equal unemployment protection what is inconsistent with the equality and equity principles.

In view of the foregoing, pursuing part one of Article 116 of the Constitution of the Republic of Belarus, articles 22 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, the Constitutional Court of the Republic of Belarus

RULED:

1. With a view to implement the constitutional principle of everyone’s equality before the law, stipulate opportunities to the exercise of everyone’s right to unemployment protection at a law level to recognise as necessary under the present decision to make alterations and addenda to the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus” in order to clarify:

in part three of article 23 – the list of the grounds for termination of an employment agreement involving educational maintenance allowance to the unemployed that is lower as related to the standard one;

in paragraph two of part two of article 24 – the list of the grounds for termination of an employment agreement involving the refuse of unemployment benefits to the unemployed.

2. To propose to the Council of Ministers of the Republic of Belarus to make a relevant draft law and submit it in the established procedure to the House of Representatives of the National Assembly of the Republic of Belarus.

3. The present Decision shall come into legal force from the date of its adoption.

4. To publish the present Decision in accordance with legislation.

Presiding Officer-

Chairman of the Constitutional Court

of the Republic of Belarus

P.P.Miklashevich